FOURTH DIVISION June 30, 2016

No. 1-13-3401

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 12 CR 4254 ) LASHAUN LASHLEY, ) Honorable ) Maura Slattery Boyle, Defendant-Appellant. ) Judge Presiding.

JUSTICE ELLIS delivered the judgment of the court, with opinion. Justices Howse and Cobbs concurred in the judgment and opinion.

OPINION

¶1 After a bench trial, defendant Lashaun Lashley was convicted of one count of Class 1

possession of between 15 and 100 grams of heroin and two counts of Class 4 possession of less

than 15 grams of heroin. At the time defendant committed these offenses, he was serving a

sentence of Cook County impact incarceration (i.e., boot camp) for his convictions in circuit

court case Nos. 08 CR 1513801 and 11 CR 0497201. See 730 ILCS 5/5-8-1.2 (West 2012)

(outlining county impact incarceration program). In this case, the trial court sentenced defendant

to three concurrent terms of four years’ imprisonment to be served consecutively to the sentences

imposed in case Nos. 08 CR 1513801 and 11 CR 0497201.

¶2 On appeal, defendant contends that the State failed to prove beyond a reasonable doubt

that he possessed at least 15 grams of heroin, and, therefore, this court should reduce his Class 1

conviction to Class 4 possession, i.e., possession of less than 15 grams of heroin. He further

contends that his sentences should run concurrently with the sentences imposed in the two prior

cases and that the trial court improperly entered extended term sentences on his two Class 4

heroin possession offenses. No. 1-13-3401

¶3 We affirm defendant’s conviction because the State presented sufficient evidence—via a

forensic chemist’s stipulated testimony—that the heroin seized from defendant weighed 15.2

grams. We are not persuaded by defendant’s argument that, even viewing that testimony in the

light most favorable to the State, the forensic chemist included the weight of several plastic bags

in his calculation.

¶4 But we agree with defendant’s arguments regarding his sentencing. Although the trial

court did not expressly say why it imposed consecutive sentences, none of the provisions of

section 5-8-4 of the Unified Code of Corrections (730 ILCS 5/5-8-4 (West 2012)) applied to

defendant. We reject the State’s argument that section 5-8-4(d)(6) of the Unified Code of

Corrections (730 ILCS 5/5-8-4(d)(6) (West 2012)) authorized defendant’s sentence, where the

applicability of that provision is ambiguous with respect to defendant, who was on monitored

release from a sentence of county impact incarceration at the time of his arrest in this case.

Because of that ambiguity, we adopt a reading of section 5-8-4(d)(6) that favors defendant. We

also agree that the trial court erred in imposing an extended-term sentence on defendant’s Class 4

felonies for possessing less than 15 grams of heroin.

¶5 I. BACKGROUND

¶6 The State charged defendant with possession of 15 to 100 grams of heroin with intent to

deliver, possession of less than 15 grams of heroin with intent to deliver within 1000 feet of a

public park, possession of a controlled substance with intent to deliver within 1000 feet of a

school, aggravated battery, and resisting a police officer.

¶7 At trial, Chicago police officer John Lipka testified that, shortly after noon on January 30,

2012, he was conducting narcotics surveillance on the 100 block of North Karlov Avenue in

Chicago. From 200 feet away and using binoculars, he observed defendant and Darrien Forrest

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standing in front of 122 North Karlov Avenue. Lipka described three transactions that he

observed between Forrest and unknown individuals. Vehicles would pull up to the curb and stop.

Forrest would approach the vehicles and speak to the drivers. He would then walk into the

gangway on the north side of the building at 122 North Karlov Avenue, bend over, retrieve an

object, and hand it to the motorist, who would then leave.

¶8 Officer Lipka also testified that he observed defendant walk up to a vehicle and talk to

the motorist, who handed him money. Defendant then walked over to the gangway at 122 North

Karlov Avenue, bent over, picked up an object from the ground, and handed it to the driver. The

officer observed defendant retrieve the object from the same area he had seen Forrest go to on

the three prior occasions. Officer Lipka believed that he had witnessed multiple illegal narcotics

transactions.

¶9 Officer Lipka then broke his surveillance, and he and his partner, Officer Edward

Heidewald, drove to 122 North Karlov Avenue in an unmarked vehicle. They were in plain

clothes and wearing their stars and belts. As they approached, they saw a woman hand defendant

money. Defendant looked in the officers’ direction and immediately began to walk south on

Karlov Avenue. The officers exited their car and approached defendant for a field interview.

Heidewald saw purple plastic bags in defendant’s mouth and asked him to spit them out;

defendant refused. As Heidewald attempted to handcuff defendant, defendant fled. Officer Lipka

grabbed defendant, who pulled him, and a struggle ensued. Lipka knocked defendant’s feet out

from under him, and he and the officers fell to the ground, injuring Lipka’s hands. Lipka later

learned that he had fractured his right middle finger.

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¶ 10 After gaining control of defendant, Officer Heidewald again asked defendant to spit out

the objects in his mouth. Defendant spit out 10 purple plastic bags containing a white powder

substance, which the officers suspected to be heroin.

¶ 11 Officer Lipka directed Officer Alan Rogers to the gangway where Rogers retrieved a

clear plastic bag containing five knotted bags, inside of which were multiple Ziploc bags

containing suspected heroin. In total, Rogers recovered 83 small bags. Both Heidewald and

Lipka identified defendant in court.

¶ 12 The items recovered from the gangway were inventoried under No. 12525847, and those

recovered from defendant’s mouth were inventoried under No. 12525853. The parties stipulated

that forensic chemist Peter Anzalone performed tests for ascertaining the presence of a controlled

substance on the recovered items. The parties stipulated that Anzalone would testify:

“[t]hat after performing the tests on the contents of 65 of the 83 items recovered

in Inventory 12525847, the chemist’s expert opinion within a reasonable degree of

scientific certainty is that the contents of the tested items were positive for the presence

of heroin. That actual weight of those items was 15.2 grams.

That the chemist would further testify that the total estimated weight of the 83

items would be 19.4 grams.”

The stipulation also stated that Anzalone would testify that the items recovered from defendant’s

mouth tested positive for the presence of heroin and “the actual weight of those items was 3.9

grams.”

¶ 13 The parties also stipulated that the doctor who treated Officer Lipka’s hand would testify

that, based on the amount of swelling and tenderness in the officer’s fingers, Lipka had a

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nondisplaced fracture. The doctor gave Lipka a removable splint and prescribed physical

therapy.

¶ 14 The trial court found defendant guilty of three lesser-included offenses of the charged

offenses: one count of possession of 15 to 100 grams of heroin (720 ILCS 570/402(a)(1)(A)

(West 2012)) and two counts of possession of less than 15 grams of heroin (720 ILCS 570/402(c)

(West 2012)). The court also found defendant guilty of resisting a police officer (720 ILCS 5/31-

1(a-7) (West 2012)), but not guilty of aggravated battery. The trial court denied defendant’s

motion for a new trial.

¶ 15 At sentencing, the State asked the court to impose an extended-term sentence on each of

the possession counts. The court sentenced defendant to concurrent, extended terms of four

years’ imprisonment on the three possession convictions, followed by two years of mandatory

supervised release (MSR). The court ordered the sentences to be served consecutively to the

sentences imposed in two prior cases (case Nos. 08 CR 1513801, 11 CR 0497201) in which

defendant was sentenced to two periods of county impact incarceration. 1 No sentence was

entered on the conviction for resisting a police officer.

¶ 16 Defendant appeals.

¶ 17 II. ANALYSIS

¶ 18 A. Sufficiency of Evidence of Weight

¶ 19 Defendant first argues that the State failed to prove beyond a reasonable doubt that he

was in possession of 15 to 100 grams of heroin. The State responds that the parties stipulated to

1 Defendant was sentenced to county impact incarceration in case No. 11 CR 0497201 on May 11, 2011. In case No. 08 CR 1513801 defendant was initially sentenced to two years’ probation. He violated probation, was sentenced to 60 days’ imprisonment, a warrant was issued, and defendant was arrested and ultimately sentenced on May 11, 2011, to boot camp in case No. 08 CR 1513801, to run concurrent with the county impact incarceration sentence in case No. 11 CR 0497201.

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the laboratory results that the recovered heroin in question weighed over 15 grams, and

defendant, therefore, waived his right to appeal this issue.

¶ 20 The State cites People v. Woods,

(2005), and People v. Bush,

(2005), in support of its argument that defendant waived his challenge to the sufficiency of

the evidence of the weight of the heroin. In Woods, the defendant stipulated to the weight and

results of chemical testing on narcotics that the defendant had been charged with possessing.

Woods,

. On appeal, the defendant alleged that the State had failed to prove the

chain of custody for the narcotics, rendering the narcotics evidence inadmissible.

. The

supreme court noted that a defendant “may waive the necessity of proof of chain of custody by

entering into a stipulation with respect to the evidence.”

. The court also “reject[ed] the

notion that a challenge to the State’s chain of custody is a question of the sufficiency of the

evidence.”

. Instead, because “[a] chain of custody is used to lay a proper foundation

for the admission of evidence,” the court found that “a challenge to the chain of custody is an

evidentiary issue that is generally subject to waiver on review if not preserved by defendant’s

making a specific objection at trial and including this specific claim in his or her posttrial

motion.”

Thus, the court concluded both that the defendant had forfeited his chain-of-custody

challenge by failing to object at trial and that he had “affirmatively waived” his challenge by

entering into the stipulation and signaling that “there was no dispute involving the admissibility

of the narcotics evidence.”

.

¶ 21 Similarly, in Bush, the court held that the defendant had affirmatively waived his

challenge to the foundation for an expert opinion that a certain substance contained cocaine

where the defendant had stipulated to the expert’s testimony. Bush, 214 Ill. 2d. at 333. By

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stipulating that the expert’s opinion was admissible, the defendant “waived the necessity of

proving the requisite foundation for that opinion.”

¶ 22 We do not find either Woods or Bush to be applicable here. Defendant does not challenge

the admissibility of the stipulated testimony on the basis that it lacked a proper foundation.

Instead, he claims that the State failed to prove that he possessed more than 15 grams of heroin,

and that he could only have been convicted of the lesser offense of possessing less than 15 grams

of heroin. When the State charges a defendant with possessing a certain amount of drugs, and the

defendant may be found guilty of lesser-included offenses involving smaller quantities of drugs,

the weight of the drugs recovered from the defendant is an essential element of the charges that

the State must prove beyond a reasonable doubt. People v. Jones,

(1996).

And it is well established that “when a defendant makes a challenge to the sufficiency of the

evidence, his or her claim is not subject to the waiver rule and may be raised for the first time on

direct appeal.” Woods,

.

¶ 23 Defendant did not stipulate to the conclusion that the State had proved the element of the

weight of the drugs beyond a reasonable doubt. Instead, he stipulated that Anzalone would testify

that the contents of 65 of the 83 bags tested positive for heroin and weighed 15.2 grams. Whether

that evidence was sufficient to prove that the heroin weighed more than 15 grams—an essential

element of the State’s case—is not an issue that defendant was required to raise below. We reject

the State’s claim that defendant waived review of this issue.

¶ 24 Turning to the merits of defendant’s sufficiency-of-the-evidence argument, defendant

contends that the State failed to prove beyond a reasonable doubt that he possessed between 15

and 100 grams of heroin because the stipulation regarding the weight of the heroin indicated that

the forensic chemist weighed the heroin along with the plastic bags in which the heroin was

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packaged. According to defendant, the plastic bags likely weighed more than 0.2 grams, so the

fact that the heroin and the bags weighed 15.2 grams together does not establish that the heroin

weighed at least 15 grams.

¶ 25 The parties stipulated that the forensic chemist would testify that he received inventory

No. 12525847, which contained “83 plastic bags with powder substance and six empty plastic

bags.” They also stipulated:

“That after performing the tests on the contents of 65 of the 83 items recovered in

Inventory 12525847, the chemist’s expert opinion within a reasonable degree of scientific

certainty is that the contents of the tested items were positive for the presence of heroin.

That [the] actual weight of those items was 15.2 grams.”

Defendant claims that the word “items” in the final sentence refers to the 65 “items” taken from

inventory No. 12525847, which included both heroin and plastic bags.

¶ 26 In assessing the sufficiency of the evidence, we determine whether a rational trier of fact,

viewing the evidence in the light most favorable to the State, could have found the essential

elements of the crime beyond a reasonable doubt. People v. Ross,

(2008).

We will not substitute our judgment for that of the trier of fact with regard to the credibility of

witnesses, the weight to be given to each witness’s testimony, or the reasonable inferences to be

drawn from the evidence.

A defendant’s conviction will not be set aside unless the evidence

is so improbable or unsatisfactory that it creates a reasonable doubt as to his guilt. People v.

Siguenza-Brito,

(2009).

¶ 27 As we noted above, when a defendant is charged with possessing a specific amount of

drugs and there is an available lesser-included offense of possessing a smaller amount, the

weight of the drugs is an essential element that the State must prove beyond a reasonable doubt.

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Ill. 2d at 428-29. When the samples of the drug are not sufficiently homogenous—

such as packets containing powder—"a portion from each container or sample must be tested in

order to determine the contents of each container or sample.” Id. at 429. The State cannot rely on

an inference that the untested samples also contain the drug unless they are actually tested. Id. at

430.

¶ 28 Viewing the evidence in the light most favorable to the State, we hold that it presented

sufficient evidence to prove that defendant possessed between 15 and 100 grams of heroin.

While the stipulation does refer to the “items” in inventory No. 12525847 as both the powder

and the plastic bags, it is not entirely clear that the chemist weighed both the powder and the

bags, or subtracted the weight of the bags from the overall weight of the 65 tested items. Nor can

we be certain what the weight of the bags was, or that they weighed more than 0.2 grams. It is

more likely that the weight of the bags did not factor into the chemist’s calculation, considering

that he was weighing the drugs for the express purpose of preparing evidence for the State’s

prosecution and weighed just enough of the drugs (15.2 grams) to provide the State with enough

evidence to prosecute defendant for possessing between 15 and 100 grams of heroin.

¶ 29 In any event, defendant was free to cross-examine the expert on these points but did not

do so. Had defendant raised such challenges at trial, the State would have had the opportunity to

respond. But defendant did not, and thus the State provided no further evidence on this point.

Taking the evidence in the light most favorable to the State and with no contrary evidence put

forth by defendant, we find that the State presented sufficient evidence to prove that defendant

possessed more than 15 grams of heroin.

¶ 30 B. Consecutive Sentencing

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¶ 31 Defendant next contends that the trial court erred in ordering that his sentences in this

case run consecutively with his sentences in case Nos. 08 CR 1513801 and 11 CR 0497201,

which he was serving at the time he committed the instant offense.

¶ 32 Before reaching the merits of defendant’s argument, we must address two procedural bars

raised by the State: (1) that this issue is moot; and (2) that defendant has forfeited review of this

issue by failing to raise it below. We turn first to the mootness argument, then to forfeiture.

¶ 33 An issue is moot if no actual controversy exists or where events occur which make it

impossible for the court to grant effectual relief. Dixon v. Chicago & North Western

Transportation Co.,

(1992).

¶ 34 The State contends that this issue is moot because defendant is no longer incarcerated.

We disagree. Defendant is currently serving a two-year term of MSR, which is part of

defendant’s sentence. 730 ILCS 5/5-8-1(d) (West 2012). The Department of Corrections retains

custody of all individuals on MSR, and those individuals may be taken into custody for violation

of the conditions of their release. 730 ILCS 5/3-14-2(a), (c) (West 2012). Since defendant has not

served his entire sentence and is still subject to being confined as a result of his conviction, the

issue is not moot. See, e.g., People v. Younger,

(1986) (issue regarding

length of defendant’s prison sentence not moot even though he had completed prison term and

was on MSR).

¶ 35 With respect to forfeiture, defendant acknowledges that he did not raise this issue below.

But he argues that this issue amounts to plain error exempt from forfeiture. The first step in

determining whether an error is plain error is to determine whether an error occurred at all.

People v. Sargent,

(2010). Thus, we turn to the merits of defendant’s

argument.

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¶ 36 At the outset, we note that the trial court did not expressly state which provision of the

consecutive-sentencing statute applied to defendant. Defendant argues that none of the

provisions of section 5-8-4 of the Unified Code of Corrections (730 ILCS 5/5-8-4 (West 2012)),

which spells out the circumstances in which a defendant may be sentenced to consecutive terms

of imprisonment, applied to him. Because none of the provisions of section 5-8-4 applied to him,

defendant argues, we should order that his sentences be imposed concurrently. See 730 ILCS

5/5-8-4(a) (West 2012) (multiple sentences “shall run concurrently unless otherwise determined

by the Illinois court under this Section”).

¶ 37 The State responds that it was likely that the trial court applied section 5-8-4(d)(6) of the

Unified Code of Corrections (730 ILCS 5/5-8-4(d)(6) (West 2012)), which states, in relevant

part:

“If the defendant was in the custody of the Department of Corrections at the time of the

commission of the offense, the sentence shall be served consecutive to the sentence under

which the defendant is held by the Department of Corrections.” 730 ILCS 5/5-8-4(d)(6)

(West 2012).

The State points out that defendant was serving his sentence for case Nos. 08 CR 1513801 and

11 CR 0497201 at the time that he was arrested in this case, and argues that consecutive

sentencing was thus required.

¶ 38 Defendant contends that section 5-8-4(d)(6) was also inapplicable because he was not

“in the custody of the Department of Corrections at the time of the commission of the offense.”

Rather, defendant argues, he was in the custody of Cook County corrections officers, not the

Illinois Department of Corrections.

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¶ 39 It is undisputed that, on May 11, 2011, defendant was sentenced to Cook County’s

impact incarceration program (also known as boot camp). See 730 ILCS 5/5-8-1.2 (West 2012)

(outlining impact incarceration program for Cook County). County impact incarceration provides

an alternative punishment for “certain non-violent offenders.” 730 ILCS 5/5-8-1.2(a) (West

2012). Defendants placed in county impact incarceration must participate in the program for 120

to 180 days, followed by a “mandatory term of monitored release for at least 8 months and no

more than 12 months.” 730 ILCS 5/5-8-1.2(f) (West 2012). Because defendant was sentenced to

county impact incarceration on May 11, 2011, he had completed the program and was likely on

monitored release at the time he committed the instant offense on January 30, 2012.

¶ 40 Thus, the question in this case is whether, under section 5-8-4(d)(6), defendant was

required to serve his sentence in this case consecutively with the sentence imposed on May 11,

2011. This is a question of statutory construction that we review de novo. People v. Giraud,

.

¶ 41 When interpreting the language of a statute, our primary goal is to ascertain and give

effect to the legislative intent.

The best indicator of that intent is the language of the statute,

given its plain and ordinary meaning.

Where the language of the statute is clear and

unambiguous, we must apply it as written, without relying on extrinsic aids to statutory

construction.

If the language is ambiguous, we construe the statute so that no part of it is

rendered meaningless or superfluous.

“Pursuant to the rule of lenity, ambiguous criminal

statutes will generally be construed in the defendant’s favor.” People v. Gutman,

.

¶ 42 We reject the State’s argument because, with respect to its application to defendants on

monitored release from county impact incarceration, section 5-8-4(d)(6) is ambiguous for two

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independent reasons: (1) it is reasonable that “the Department of Corrections” refers only to the

Illinois Department of Corrections and not also the county officials responsible for administering

the county impact incarceration program; and (2) even if “the Department of Corrections”

referred to county officials and facilities it is reasonable to read section 5-8-4(d)(6) as excluding

an individual on monitored release because such a person is not “held” by that facility or agency

(730 ILCS 5/5-8-4(d)(6) (West 2012)). In light of these ambiguities, we adopt the interpretation

of section 5-8-4(d)(6) that favors defendant.

¶ 43 1. “The Department of Corrections”

¶ 44 Defendant argues that section 5-8-4(d)(6) does not apply to offenders in the county

impact incarceration program. Defendant claims that the use of the phrase “in the custody of the

Department of Corrections” in section 5-8-4(d)(6) refers to the Illinois Department of

Corrections, not the county sheriff, who is tasked with administering the county impact

incarceration program. We agree.

¶ 45 We begin by noting that the responsibility for establishing and administering the county

impact incarceration program falls on county officials, not the Illinois Department of

Corrections. Section 5-8-1.2 of the Unified Code of Corrections (730 ILCS 5/5-8-1.2 (West

2012)), which outlines the county impact incarceration program, states, “Under the direction of

the Sheriff and with the approval of the County Board of Commissioners, the Sheriff, in any

county with more than 3,000,000 inhabitants, may establish and operate a county impact

incarceration program for eligible offenders.” 730 ILCS 5/5-8-1.2(b) (West 2012). The sheriff is

tasked with “monitoring all offenders” in the program, including those on monitored release.

If the offender fails to complete the program or the monitored release period, the sheriff is

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required to notify the State’s Attorney and file a petition for violation in circuit court. 730 ILCS

5/5-8-1.2(h) (West 2012).

¶ 46 Notably, section 5-8-1.2 uses the phrase “Illinois Department of Corrections” when

referring to that institution. See 730 ILCS 5/5-8-1.2(b) (West 2012) (“Offenders assigned to the

county impact incarceration program under an intergovernmental agreement between the county

and the Illinois Department of Corrections are exempt from the provisions of this mandatory

period of monitored release.” (Emphasis added.)). But, in assigning the responsibility for

establishing and administering the program, section 5-8-1.2 does not use the phrase “Illinois

Department of Corrections” or “Department of Corrections.” “Generally, when the legislature

uses certain words in one instance and different words in another, different results were

intended.” Emerald Casino, Inc. v. Illinois Gaming Board,

(2003). Thus,

we find that the legislature intended to place individuals sentenced to impact incarceration under

the supervision of the county sheriff, not the Illinois Department of Corrections.

¶ 47 By contrast, section 5-8-4(d)(6) only requires consecutive sentences for individuals who

commit offenses while in the custody of “the Department of Corrections.” (Emphasis added.)

730 ILCS 5/5-8-4(d)(6) (West 2012). As defendant points out, it does not refer to multiple

departments or to any county officials, including the Cook County sheriff. On the other hand, the

section does not specifically define “the Department of Corrections” to mean the Illinois

Department of Corrections.

¶ 48 But other provisions of section 5-8-4 specifically refer to county officials. For example, if

a person charged with a felony commits another felony while “in pretrial detention in a county

jail facility or county detention facility,” the sentences for the two felonies must be consecutive.

(Emphases added.) 730 ILCS 5/5-8-4(d)(8) (West 2012). If a person commits battery “against a

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county correctional officer or sheriff’s employee while serving a sentence or in pretrial detention

in a county jail facility,” the battery sentence is imposed consecutively with the sentence the

person was serving. (Emphases added.) 730 ILCS 5/5-8-4(d)(8.5) (West 2012). And if an

individual possesses contraband “while serving a sentence in a county jail or while in pre-trial

detention in a county jail,” the sentence for possessing that contraband runs consecutively.

(Emphases added.) 730 ILCS 5/5-8-4(d)(10) (West 2012).

¶ 49 These provisions show that, had the legislature intended to include individuals in the

custody of county officials in section 5-8-4(d)(6), it would have used some language suggesting

as much. But section 5-8-4(d)(6) uses the phrase “Department of Corrections” (730 ILCS 5/5-8-

4(d)(6) (West 2012)), not “sheriff” or “county jail” or “county correctional officer.”

¶ 50 Other provisions of the Unified Code of Corrections also show that “the Department of

Corrections” refers to an Illinois governmental agency, not a county agency. Chapter III of the

Unified Code of Corrections (730 ILCS 5/Ch. III (West 2012)) spells out the powers of the

Illinois Department of Corrections. That chapter defines “Department” as “the Department of

Corrections of this State,” not the various corrections departments of Illinois counties. (Emphasis

added.) 730 ILCS 5/3-1-2(e) (West 2012). The Department is given the power “to accept bids

from counties and municipalities for the construction, remodeling or conversion of a structure to

be leased to the Department of Corrections for the purposes of its serving as a correctional

institution or facility.” (Emphases added.) 730 ILCS 5/3-2-2(1)(c) (West 2012). The Department

of Corrections may build juvenile detention centers and “charge a per diem to the counties as

established by the Department to defray the costs of housing each minor in a center.” (Emphasis

added.) 730 ILCS 5/3-2-2(c-5) (West 2012). “The Department of Corrections may provide

consultation services for the design, construction, programs and administration of correctional

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facilities and services for adults operated by counties and municipalities and may make studies

and surveys of the programs and the administration of such facilities.” (Emphases added.) 730

ILCS 5/3-15-2(c) (West 2012).

¶ 51 Each of these provisions shows that the legislature has drawn a clear distinction between

“the Department of Corrections” and county entities. If we were to accept the State’s argument

that “the Department of Corrections” referred to in section 5-8-4(d)(6) includes county

corrections officials, we would run afoul of the numerous provisions of the Unified Code of

Corrections envisioning that the Department of Corrections is a state entity that operates

independently of counties. Thus, the plain language of section 5-8-4(d)(6) indicates the

legislature’s intent to exclude individuals in the custody of county correctional offices.

¶ 52 The State simply assumes that “the Department of Corrections” referred to in section 5-8-

4(d)(6) includes “the Cook County Department of Corrections.” It offers no explanation for why

we should treat those entities as one and the same. To the contrary, as we have explained above,

such an assumption is unwarranted.

¶ 53 We find defendant’s interpretation of the phrase “the Department of Corrections” as

referring to the Illinois Department of Corrections alone to be reasonable. Consequently, section

5-8-4(d)(6) is, at the very least, ambiguous with respect to offenders in the custody of the county

impact incarceration program. See In re B.L.S.,

(2002) (“A statute is

ambiguous if it is capable of more than one reasonable interpretation.”). But, as we explain more

fully below, that is not the only reason why section 5-8-4(d)(6) is ambiguous.

¶ 54 2. “Held”

¶ 55 Our second basis for finding that section 5-8-4(d)(6) is ambiguous with respect to

individuals, like defendant, on monitored release from county impact incarceration is that the

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statute provides that an individual in the custody of the Department of Corrections at the time he

commits a subsequent offense must serve his sentence for that offense consecutive “to the

sentence under which the defendant is held by the Department of Corrections.” (Emphasis

added.) 730 ILCS 5/5-8-4(d)(6) (West 2012). For the reasons explained below, even if we agreed

with the State that “the Department of Corrections” included a county correctional facility (we

do not), the use of the word “held” suggests that the statute applies to individuals only in

physical custody of the correctional facility, not to individuals on monitored release.

¶ 56 Our conclusion is guided by our supreme court’s decision in People ex rel. Gibson v.

Cannon,

(1976). There, the defendant was on parole after serving five years in

the penitentiary when he committed a burglary. At the time of his sentencing, the following

statute was in effect:

“ ‘A sentence of an offender committed to the Department of Corrections at the time of

the commission of the offense shall not commence until expiration of the sentence under

which he is held by the Department of Corrections.’ ”

at 369 (quoting

(§ 5-8-4(f)).

The court noted that a person released on parole remains in the custody of the Department of

Corrections. Id. at 370. But the court highlighted the use of the word “held” in the statute and

found that “ ‘[h]eld’ connotes a state or degree of physical restraint” that was inconsistent with a

parolee’s status. Id. The court noted that the “lack of physical restraint is underscored by the fact

that a parolee is entitled to a hearing before his parole is revoked,” at which he is entitled to

notice of the charges against him and the ability to call witnesses on his behalf. Id. The court

concluded that the statute was ambiguous because of its simultaneous reference to individuals

“committed” to the Department of Corrections and individuals “held” by the Department of

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Corrections. Id. Because the statute was ambiguous, the court applied the rule of lenity and

strictly construed it in defendant’s favor. Id. at 370-71.

¶ 57 Section 5-8-4(d)(6) mirrors the language of the statute at issue in Cannon. Section 5-8-

4(d)(6) provides that an individual “in the custody of the Department of Corrections” at the time

he commits an offense must serve his sentence for that offense consecutive to “the sentence

under which the defendant is held by the Department of Corrections.” (Emphasis added.) 730

ILCS 5/5-8-4(d)(6) (West 2012). As our supreme court recognized, the use of the word “held”

implies physical confinement. But a defendant on monitored release from county impact

incarceration is not physically confined. Rather, a person on monitored release must “report or

appear in person before any such person or agency as directed by the court or the Sheriff” (730

ILCS 5/5-8-1.2(h)(2) (West 2012)), may not leave the State without consent of the court or

sheriff (730 ILCS 5/5-8-1.2(h)(4) (West 2012)), and must “permit representatives of the Sheriff

to visit at the person’s home or elsewhere to the extent necessary for the Sheriff to monitor

compliance with the program.” 730 ILCS 5/5-8-1.2(h)(5) (West 2012). These requirements

would be unnecessary if a defendant were “held” by the correctional facility.

¶ 58 And like parolees charged with violating their parole, individuals on monitored release

from county impact incarceration have a right to notice of the charges (730 ILCS 5/5-6-4(a)(1)

(West 2012)) and a hearing (730 ILCS 5/5-6-4(b) (West 2012)) at which the State bears the

burden of proof and the defendant has “the right of confrontation, cross-examination, and

representation by counsel.” 730 ILCS 5/5-6-4(c) (West 2012). It was these characteristics of

parole that convinced our supreme court in Cannon that a parolee was not “held” by the

Department of Corrections while on parole. Cannon,

. We find these same

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characteristics persuasive in finding that defendant was not “held” under section 5-8-4(d)(6)

when he was on monitored release from county impact incarceration.

¶ 59 Our conclusion is further supported by People v. Gillespie,

(1977), where this court, distinguishing Cannon, found that a defendant who committed an

offense while on work release was subject to mandatory consecutive sentencing. The court noted

that, unlike parolees, “a defendant on work release is in custody and confined to or held by a

prison with the only difference in status from that of an ordinary prisoner being that an offender

on work release is allowed outside the actual prison to a limited extent.”

. Moreover,

if offenders on work release were absent for an unauthorized reason, they could be prosecuted

for the offense of escape.

.

¶ 60 Monitored release from county impact incarceration does not resemble work release.

Offenders on monitored release are not confined to a prison, with only limited time outside the

prison walls. Rather, they are among the general population, albeit with reporting requirements

and travel restrictions. 730 ILCS 5/5-8-1.2(h) (West 2012). If an offender violates the conditions

of his monitored release, he is subject to imprisonment for the same period initially applicable to

his offense, not for a prosecution for the separate offense of escape. 730 ILCS 5/5-6-4(e) (West

2012). Thus, individuals like defendant on monitored release more closely resemble parolees

than prisoners on work release, and the reasoning of Cannon applies rather than the reasoning of

Gillespie.

¶ 61 As shown by Cannon, the use of the word “held” in section 5-8-4(d)(6), as applied to an

individual on monitored release from county impact incarceration, creates an ambiguity in that

statute. We now turn to the effect of the two ambiguities that we have identified.

¶ 62 3. The Rule of Lenity

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¶ 63 Having found that section 5-8-4(d)(6) is ambiguous in two respects with regard to

individuals on monitored release from county impact incarceration, we also find that application

of the rule of lenity is appropriate. The rule of lenity provides that “ambiguous criminal statutes

will generally be construed in the defendant’s favor.” Gutman,

; see also

Cannon,

(“ ‘If a statute creating or increasing a penalty or punishment be

capable of two constructions, undoubtedly that which operates in favor of the accused is to be

adopted.’ ” (quoting People v. Lund,

(1943)). Thus, we adopt the

construction of section 5-8-4(d)(6) which favors defendant, i.e., that section 5-8-4(d)(6) does not

apply to an individual on monitored release from county impact incarceration.

¶ 64 In sum, we reject the State’s argument that the trial court properly sentenced defendant to

consecutive sentences under section 5-8-4(d)(6). Defendant was not in the custody of the

Department of Corrections when he committed the instant offense; he was in the custody of the

Cook County sheriff. Nor are we convinced that that provision even applies to individuals, like

defendant, who commit offenses while serving a period of monitored release from county impact

incarceration under section 5-8-1.2. Because no other provision of section 5-8-4 arguably

required or authorized defendant’s consecutive sentence, we find that the trial court erred in

imposing consecutive sentences.

¶ 65 4. Plain Error

¶ 66 We must now consider whether this error constitutes plain error exempt from forfeiture.

In order to find plain error “[i]n the sentencing context, a defendant must *** show either that (1)

the evidence at the sentencing hearing was closely balanced, or (2) the error was so egregious as

to deny the defendant a fair sentencing hearing.” People v. Hillier,

(2010).

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¶ 67 Defendant argues that both prongs apply. With respect to the first prong, defendant notes

that the trial court imposed a minimum-term sentence of four years for his possession of 15 to

100 grams of heroin. Thus, defendant argues that the trial court “was not trying to sentence [him]

harshly,” and the court “would not likely have sentenced him harshly had [the court] correctly

understood the law.” Defendant also contends that the second prong applies because, “[b]y

misunderstanding consecutive sentencing, the [trial court] denied [defendant] a fair sentencing

hearing.”

¶ 68 This court has previously held that a trial court’s mistaken belief that consecutive

sentences are required constitutes plain error under the second prong “[b]ecause the right to be

lawfully sentenced is a substantial right.” (Internal quotation marks omitted.) People v. Dover,

(2000); see also People v. Moncrief,

(1995); People v. Wacker,

(1994) (recognizing, in dicta, that improper

imposition of consecutive sentences might violate defendant’s fundamental rights under second

prong). More generally, our supreme court has stated that “[t]he imposition of an unauthorized

sentence affects substantial rights” under the second prong of plain error. People v. Hicks,

(1998); see also In re Danielle J.,

(“Plain error may

properly be invoked where a count misapprehends or misapplies the law.” (Internal quotation

marks omitted.)).

¶ 69 Here, the trial court misapprehended the law in ordering that defendant serve his sentence

in this case consecutively with his sentences in his prior cases. This misapprehension denied

defendant of his substantial right to be given a proper sentence under the law. We hold that this

error constituted second-prong plain error.

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¶ 70 The State argues that this error was not plain error because “defendant cannot establish

prejudice where the evidence is beyond overwhelming that the court’s finding was inevitable.”

We hardly see how we can characterize the trial court’s finding as “inevitable” when it was

incorrect as a matter of law. In fact, most of the State’s argument against the application of plain

error is an argument about the applicability of section 5-8-4(d)(6). But as we explained above,

the State’s argument is unavailing.

¶ 71 Because we find that this error constituted plain error, we decline to reach defendant’s

alternative argument that his counsel was ineffective for failing to object to the consecutive

sentences.

¶ 72 C. Extended-Term Sentences

¶ 73 Finally, defendant contends, and the State concedes, that the trial court erred in imposing

extended-term sentences on the lesser Class 4 felony convictions where he was also convicted of

a Class 1 felony. He requests this court to reduce his four-year sentences on the two Class 4

felonies to the maximum nonextended term of three years’ imprisonment.

¶ 74 Defendant is correct that an extended-term sentence may be imposed only for the most

serious class of offense of which defendant was convicted. 730 ILCS 5/5-8-2 (West 2012);

People v. Richardson,

(2004). Defendant was subject to the

statutory range of one to three years’ imprisonment on his Class 4 felonies (his convictions for

possession of less than 15 grams of heroin). See 720 ILCS 570/402(c) (West 2012) (possession

of less than 15 grams of heroin is Class 4 felony); 730 ILCS 5/5-4.5-45 (West 2012) (sentencing

range for Class 4 felonies is one to three years’ incarceration). Pursuant to our authority under

Illinois Supreme Court Rule 615(b)(4), we reduce the sentences on the two Class 4 felonies to

three years’ imprisonment, the maximum nonextended term.

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¶ 75 III. CONCLUSION

¶ 76 For the reasons stated, we affirm defendant’s conviction. We remand for resentencing,

with directions that the trial court order defendant’s sentence to be served concurrently with

those imposed in Cook County circuit court case Nos. 08 CR 1513801 and 11 CR 0497201, and

to reduce the sentences for the Class 4 felonies to three years’ incarceration.

¶ 77 Conviction affirmed; remanded for resentencing with directions.

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